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The contrast between progress and process was on display when the U.S. Supreme Court discussed the admissibility of scientific evidence in 1993.

The case of Daubert v. Merrell Dow Pharmaceuticals³⁵ arose when Jason and Eric Daubert were born with serious birth defects. During pregnancy, their mother had taken Bendectin, a prescription antinausea drug marketed by Merrell Dow. Believing that Bendectin had caused the defects, the Dauberts brought suit.

At trial, Merrell Dow was able to show that numerous published epidemiological studies concerning Bendectin failed to establish any link with birth defects. The Dauberts responded by proffering expert witnesses, who challenged the conventional wisdom that Bendectin was safe on several grounds. In particular, the Dauberts wanted to introduce experts who reanalyzed the published studies and obtained different results, although this reanalysis had not itself been published.

The trial court ruled, among other things, that the Dauberts could not present the jury with experts who relied on unpublished reanalysis. The court applied precedent holding that only techniques “generally accepted” as reliable in the relevant scientific community could be presented by expert witnesses to juries. The trial court, following the lead of other federal courts, concluded by ruling in favor of Merrell Dow. After a federal appellate court affirmed, the case reached the U.S. Supreme Court.

In the Supreme Court, the technical issue was whether the Federal Rules of Evidence displaced the “generally accepted in the scientific community” test that the lower courts had used, and, if so, what the new test should be for the admission of expert scientific testimony.³⁶ But the case attracted considerable attention in the scientific community because of its broader implications. Numerous scientists banded together in groups and filed thoughtful briefs.³⁷ From our point of view, they are of particular interest because of the insight they provide into the scientist’s world view.

The scientific community was not united on the proper approach to the question of the admissibility of expert testimony. This was, after all, not a matter that fell within some consensus concerning what is good science; indeed, it was not a scientific question at all.

The scientists who addressed the Court largely fell into two groups. The first supported the proposition that judges needed considerable power to prevent juries from hearing testimony from witnesses who were far outside the mainstream of the scientific community. These scientists were concerned with “pseudoscience” or “junk science” that does not contribute to the search for truth. As one brief put it, “The impact and influence of scientific rhetoric can easily sway and mislead a jury.”³⁸ Particularly when potential witnesses have not published their conclusions, there is the danger that these witnesses are biased in favor of one side in the case; in other words, there is the danger that legal rather than scientific norms drove the research:

Quite often, the experiments will have been conducted with a pending case or at least potential litigation in mind. On the other hand, scientific journals are typically concerned with progress in a particular field, and in making progress with sound methodology.³⁹

On the other side were scientists equally devoted to the cause of scientific progress, but they focused on the more dramatic kind of progress that often is resisted initially in the scientific community. These scientists were inclined to let the jury hear and evaluate any expert’s ideas; any screening role for the judge was suspect:

Science progresses as much or more by the replacement of old views as by the gradual accumulation of incremental knowledge. Automatically rejecting dissenting views that challenge the conventional wisdom is a dangerous fallacy, for almost every generally accepted view was once deemed eccentric or heretical. Perpetuating the reign of a supposed scientific orthodoxy in this way, whether in a research laboratory or in a courtroom, is profoundly inimical to the search for truth.⁴⁰

The Supreme Court ultimately ruled that the old “generally accepted in the scientific community” test had indeed been superseded by the Federal Rules of Evidence. But, beyond that, it did not endorse either of the approaches presented by the briefs for the scientists. The Court declined to say that judges should screen out all expert scientists who deviate from accepted approaches, but is also declined to say that judges should play no gatekeeper function at all. It crafted a traditional legal compromise, setting forth a variety of factors, such as whether the testimony proffered had been tested or published or widely accepted in the scientific community.⁴¹ These factors, none of which are dispositive, are to be applied on a flexible, case-by-case basis by trial judges.⁴² Clearly the question of what sort of expert evidence gets to the jury will emerge, indeed will be indistinguishable from, a continuing process of individual dispute resolution. In certain cases, juries will hear controversial experts; in other subtly different cases, they will not.

In the course of reaching this rather traditional legal result, the Court gently responded to the all-or-nothing rhetoric contained in some of the scientists’ briefs. As to the first group—the scientists who maintained that pseudoscience would mislead the jury—the Court replied by noting the numerous procedural devices that protect against this eventuality when an expert with unconventional views testifies. The Court found that the scientists were “overly pessimistic” about the capabilities of the adversary system, given the availability of “[v]igorous cross-examination, presentation of contrary evidence,” and the like.⁴³ The Court also noted that a judge can even direct a verdict after testimony has been given if the evidence presented is extremely weak.⁴⁴

On the other hand, the Court criticized those scientists who, in the name of Galileo, maintained that judges should perform no gatekeeper function at all. The Court recognized that even a flexible gatekeeper will at time prevent the jury from learning of “authentic insights and innovations.”⁴⁵ But, the Court stressed, that cannot determine the issue:

[T]here are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly.… [The] Rules of Evidence [are] designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.⁴⁶

In the end, all of the scientists in the Daubert case were preaching on behalf of scientific progress. Some stressed the careful progress of “normal science” where professional competence weeds out pretenders. Others emphasized the paradigm shifts of “revolutionary science,” where progress threatens the old establishment. The Court gave weight to both concerns, but within a framework of process values in which final resolutions on imperfect data are often necessary.

It would be a mistake to believe that these differences between law and science prevent members of these professions from understanding each other. There is no reason why lawyers and scientists cannot comprehend the different nature of the other’s work and appreciate when it is being done well. A lawyer can admire a scientist who frames and tests a beautiful hypothesis about the structure of the stars. It would be a misguided lawyer indeed who complained that due process protections were not provided when the hypothesis was created. A scientist can admire a legal system that crafts a workable solution to a nasty problem of self-defense in homicide cases. Only a remarkably narrow-minded scientist would complain that the solution was insufficiently scientific.

The real conflicts arise when law and science begin to infringe on each other’s turf. The most important area for such problems today is the social dispute in which a high level of technical information is involved. In such cases the differing value systems of lawyers and scientists can indeed lead to problems, for example, in disputes over the safety of nuclear reactors, the risks of genetic engineering, and the efficacy of new drugs. In the pages that follow, I argue that these problems arise largely from vastly different legal attitudes toward basic research as opposed to the application of that research.